Advocates for Highway and Auto Safety v. Federal Highway Admin.

• Decision Date: 02 August 1994
• Docket Number: No. 92-1411,92-1411
• Citation: 28 F.3d 1288,307 U.S.App. D.C. 421
• Parties: , 3 A.D. Cases 842, 5 NDLR P 225 ADVOCATES FOR HIGHWAY AND AUTO SAFETY, Petitioner, v. FEDERAL HIGHWAY ADMINISTRATION, Respondent.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1288

28 F.3d 1288

307 U.S.App.D.C. 421, 3 A.D. Cases 842,

5 NDLR P 225

ADVOCATES FOR HIGHWAY AND AUTO SAFETY, Petitioner, v. FEDERAL HIGHWAY ADMINISTRATION, Respondent.

No. 92-1411.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 15, 1993.

Decided Aug. 2, 1994.

Petition for Review of an Order of the Federal Highway Administration.

Henry M. Jasny, argued the cause and filed the briefs for petitioner.

Robert V. Zener, Appellate Litigation Counsel, U.S. Dept. of Justice, argued the cause and filed the brief for respondent. Peter J. Plocki, Trial Atty., and Paul M. Geier, Asst. Gen. Counsel for Litigation, U.S. Dept. of Transp., and Deborah Ruth Kant, Attorney, U.S. Dept. of Justice, entered appearances for respondent.

Linda Denison Kilb, was on the brief for amici curiae Robert L. Carpenter and John C. Mike Thatcher.

Erika Ziebarth Jones, Kathryn Ann Kusski, and Daniel R. Barney, entered appearances for amicus curiae American Trucking Ass'n.

Before BUCKLEY and RANDOLPH, Circuit Judges, and LEVIN H. CAMPBELL, ^* Circuit Judge, U.S. Court of Appeals for the First Circuit.

Opinion for the Court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

The Federal Highway Administration ("FHWA") sets driver safety qualifications for commercial motor vehicles operating in interstate commerce, including minimum vision requirements. The FHWA recently established a program allowing drivers with impaired vision in one eye to apply for waivers from the federal vision standard. Advocates for Highway and Auto Safety urge us to vacate the rule instituting the waiver program. We vacate and remand the rule because the agency lacked the data necessary to support its determination that the vision waiver program "is consistent with the safe operation of commercial motor vehicles." 49 U.S.C.App. Sec. 2505(f) (1988).

I. BACKGROUND

This case arises under the Motor Carrier Safety Act of 1984, codified at 49 U.S.C.App. Secs. 2501-20 (1988) ("Safety Act"). Under the Safety Act, the Secretary of Transportation is directed to issue regulations establishing "minimum Federal safety standards" to "ensure that ... the physical condition of operators of commercial motor vehicles is adequate to enable them to operate such vehicles safely." Id. Sec. 2505(a)(3). The Act allows the Secretary to waive the application of any regulation in accordance with the following procedure After notice and an opportunity for comment, the Secretary may waive, in whole or in part, application of any regulation issued under this section with respect to any person or class of persons if the Secretary determines that such waiver is not contrary to the public interest and is consistent with the safe operation of commercial motor vehicles.

Id. Sec. 2505(f). The Secretary has delegated his authority under the Act to the Federal Highway Administrator. 49 C.F.R. Sec. 1.48(aa) (1993).

The current regulation establishing the vision standard for drivers of commercial motor vehicles ("CMV") engaged in interstate commerce requires, in part, that such drivers have "distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen)." 49 C.F.R. Sec. 391.41(b)(10). This standard does not apply to state-licensed drivers who are engaged solely in intrastate commerce.

On February 28, 1992, the FHWA published an "[a]dvance notice of proposed rulemaking" requesting comments "on the need, if any, to amend its driver qualification requirements relating to the vision standard ... [that] sets forth minimum vision requirements for drivers of commercial motor vehicles (CMV) operating in interstate commerce." 57 Fed.Reg. 6,793, 6,793, col. 1 (1992). Before the time for comments had expired, the FHWA published a "[n]otice of intent to accept applications for waivers" from the vision requirement. 57 Fed.Reg. 10,295 (1992) ("March 25th Notice"). The notice stated that applications would be "processed as quickly as possible" and that "[w]aiver[s] will be issued for a period of three years or until the current rulemaking addressing the FHWA's vision requirement is completed, whichever occurs first." Id. at 10,296, col. 1. The notice imposed certain conditions and reporting requirements on applicants, among them that applicants for a waiver submit a certification that their "visual acuity [be] at least 20/40 (Snellen), corrected or uncorrected, in the better eye." Id., col. 3. In other words, applicants could be blind in one eye so long as the other was correctable to 20/40. The notice did not invite comment.

Criticized for failing to allow public comment on the March 25th Notice, the FHWA published a subsequent notice "announc[ing] the receipt of applications by drivers for waiver of the FHWA's vision requirements" and seeking "comments on its intent to waive its vision requirements for drivers that meet certain conditions." 57 Fed.Reg. 23,370, 23,370, col. 1 (1992) ("June 3rd Notice"). This notice stated that "[a]fter the comment period has closed and the comments have been analyzed," the FHWA would "publish in the Federal Register a notice of final disposition on the waiver program." Id., col. 1. The notice explained that

the proposed waiver program will enable the FHWA to conduct a study comparing a group of experienced visually deficient drivers with a control group of experienced drivers who meet the Federal vision requirements. This study will provide the empirical data that [a previous study did] not.

Id., col. 3.

In its "[n]otice of final disposition," the FHWA instituted the waiver program, making temporary waivers available to drivers who met certain conditions. 57 Fed.Reg. 31,458 (1992) ("Notice of Final Disposition"). Discussing the statutory requirement that it find that the "waiver is not contrary to the public interest," 49 U.S.C.App. Sec. 2505(f), the FHWA stated that the program "is consistent with the national policy, as expressed in the Rehabilitation Act of 1973 and the [Americans with Disabilities Act], to facilitate the employment of qualified individuals with disabilities." 57 Fed.Reg. at 31,459, col. 3. Moreover, the FHWA found the waiver program "consistent with the safe operation of commercial motor vehicles," 49 U.S.C.App. Sec. 2505(f), because the program's requirements "will effectively screen out unsafe drivers." Id. at 31,460, col. 1.

These safeguards require waiver applicants to hold a valid state commercial driver's license ("CDL") or a non-CDL license to operate a CMV issued after April 1, 1990. Id., cols. 2-3. The applicant must also have three years' recent experience driving a CMV without: (1) license suspension or revocation; (2) involvement in a reportable accident in which the applicant received a citation for a moving violation; (3) conviction for driving a CMV while intoxicated, leaving the scene of an accident involving a CMV, commission of a felony or more than one serious traffic violation involving a CMV; or (4) more than two convictions for any other moving violation in a CMV. Id., col. 3. Finally, the applicant must present proof from an optometrist or ophthalmologist certifying that the applicant's visual deficiency has not worsened since his last examination by the State licensing agency, that vision in one eye is at least 20/40 (corrected or uncorrected), and that the applicant is "able to perform the driving tasks required to operate a commercial motor vehicle." Id.

In addition, the applicant must comply with the following procedures: (1) report every citation for a moving violation involving a CMV to the FHWA within 15 days; (2) report the disposition of the charge within 15 days; (3) report "any accident involvement whatsoever" within 15 days; (4) submit documentation of an examination by an ophthalmologist or optometrist at least 15 days before the anniversary of the effective date of the waiver, including the examiner's certification that the individual is still eligible and that his vision deficiency has not worsened since the last examination; and (5) submit monthly reports of the number of miles driven, the number of nighttime and daylight hours driven, and the number of days the vehicle was not operated. Id. at 31,461, cols. 1-2.

Advocates for Highway and Auto Safety, a consortium of insurance companies, law enforcement agencies, and public interest groups, challenge the final rule on the grounds that the FHWA gave inadequate opportunity for public comment, that the waiver program violates the intent of Congress as set forth in the Safety Act, and that in promulgating the waiver program, the FHWA acted in an arbitrary and capricious manner.

II. DISCUSSION

A. Public Comment as a Prerequisite to Informed Decisionmaking

The March 25th Notice, which announced the FHWA's intention to issue temporary waivers, was promulgated without opportunity for comment--a practice we have warned against. In National Tour Brokers Ass'n v. United States, 591 F.2d 896, 902 (D.C.Cir.1978), we stressed the importance of the Administrative Procedure Act's "requirement that the parties be able to comment on the rule while it is still in the formative or 'proposed' stage ... [to ensure] that the agency maintains a flexible and open-minded attitude." The FHWA contends, however, that because the June 3rd Notice changed the terms of the March 25th Notice, the latter was implicitly revoked. Thus the agency urges us to examine the June 3rd Notice on its own terms, as if the March 25th Notice had never existed.

We take this explanation with several grains of salt. To treat the second notice as if it stood alone would ignore the possibility that the policy announced on March 25 might have solidified to the point where any comments offered in response to the later invitation would fall on deaf ears. Furthermore, the June 3rd Notice explicitly built on the earlier announcement: "To conform with the March 25 notice and to expedite the...